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Executive Summary, cont.Unfortunately, the harms of a highly punitive response todrug use and sales expand far beyond the effects of the actualpunishment. Indeed, criminalizing people who sell and usedrugs, through means like drug-induced homicide charges,amplifies the risk of fatal overdoses and diseases by increasingstigma and marginalization and driving people away fromneeded medical care, treatment, and harm reduction services.On the other hand, proven strategies are available to reducethe harms associated with drug misuse, treat dependenceand addiction, improve immediate overdose responses,enhance public safety, and prevent fatalities. These strategiesinclude expanding access to the life-saving medicinenaloxone and training in how to administer it; enacting andimplementing legal protections that encourage people to callfor medical help for overdose victims; training people howto prevent, recognize, and respond to an overdose; increasingaccess to opioid agonist treatment such as methadone andbuprenorphine, and to other effective, non-coercive drugtreatments; authorizing drug checking and safe consumptionsites; and improving research on promising drug treatments.Each of these strategies has evidence to support itseffectiveness. Drug-induced homicide laws have none.They have not proven successful at either reducing overdosedeaths or curtailing the use or sale of illegal drugs. And yet,ironically, prosecutors and legislators wield this punitivesword with impunity. They are not required to show resultsin support of their faulty rationale, and they are not heldaccountable for utterly wasted resources. We simply cannotlet our elected officials off the hook that easily anymore.Not when it could be your child, friend or, simply, fellowhuman being, who dies from a drug overdose or is lockedup for murder due to our elected officials’ failures to embraceproven, life-saving public health interventions in favor ofwasteful, destructive punishments.4An Overdose Death Is Not Murder: Why Drug-InducedHomicide Laws Are Counterproductive and Inhumane

Background: Overdose Crisisand ResponseIncreasing Rates of Opioid OverdoseIn 2015 (the most recent year for which complete data areavailable), drug overdoses accounted for over 52,000 U.S.deaths.1 Provisional data for 2016 put the number of overdosedeaths at over 64,000 – a staggering 22% increase from theyear before.2 From 2000 to 2015 more than half a millionpeople died from drug overdoses.3 The drug overdose deathrate increased significantly from 12.3 per 100,000 peoplein 2010 to 16.3 in 2015.4 Opioids – prescription and illicit– are the main drivers of increases in drug overdose deathsover the past 15 years. Opioids are a class of drugs thatinclude the illicit drug heroin as well as the legal prescriptionpain medications oxycodone (OxyContin ), hydrocodone(Vicodin ), codeine, morphine and others.5 Opioids wereinvolved in more than 33,000 deaths in 2015, accounting forsix out of every ten fatal overdoses, and representing over a200% increase since 2000.6 7Sales, substance treatment admissions, and overdosedeath rates related to prescription opioids have increasedsimultaneously since 1999.8 Moreover, from 1999 to 2011,consumption of hydrocodone more than doubled andconsumption of oxycodone increased by nearly 500%.9In 2014, almost two million Americans were addictedto prescription opioids.10 In 2015, more than 15,000people died from overdoses involving prescription opioids,quadrupling the 1999 rate.11www.drugpolicy.orgBeginning in 2010, heroin overdose fatalities began increasingrapidly across the country while fatal overdoses involvingprescription opioids began to level off and even declinedslightly between 2011 and 2012.12 Between just 2010 and2015, the rate of heroin-related overdose deaths more thanquadrupled.13 From 2014 to 2015 alone, heroin overdosedeath rates increased by 20.6%, with nearly 13,000 peopledying in 2015.14 It is important to note, though, that 77%of prescription opioid overdose deaths and 67% of heroinoverdose deaths are the result of mixing opioids with otherdrugs or alcohol.15The most recent increases in opioid overdose deathsare attributed to illicitly manufactured fentanyl. Whilepharmaceutical fentanyl is a synthetic opioid approved fortreating severe pain,16 illicitly manufactured fentanyl is oftenadded to heroin to cut costs while increasing potency.17The number of overdose deaths involving synthetic opioids,excluding methadone but including fentanyl, increased by72% from 2014 to 2015.18 Roughly 9,500 people died fromoverdoses involving synthetic opioids other than methadonein 2015.19 Provisional data from 2016 indicates that drugdeaths involving fentanyl more than doubled from 2015to 2016.20 Along with other synthetic opioids (other thanmethadone), fentanyl overdoses resulted in 20,145 deaths lastyear, significantly above the 15,446 attributed to heroin or the14,427 attributed to opioid pills alone.215

Background: Overdose Crisis andResponse, cont.Figure 1. CDC Data—Overdose Deaths Involving Opioids, United States, 2000-2015.1110Deaths per 100,000 population987Any Opioid654Commonly Prescribed Opioids(Natural & Semi-SyntheticOpioids and her Synthetic Opioids(e.g. fentanyl, tramadol)2007 2008 2009 20102011Response to Opioid Overdose CrisisWhereas past opioid epidemics were seen primarily interms of low-income African Americans developing anaddiction to heroin, the current epidemic is perceived asdisproportionately affecting white, middle class people whomisuse pharmaceutical opioids.22 Moreover, some of thegreatest increases in heroin use have occurred in demographicgroups with historically low rates: women, the privatelyinsured, and people with higher incomes.2362012201320142015The result, the New York Times has noted, is a “gentler drugwar.”24 Some Republican legislators who long championedpunitive drug war policies, for example, now propose morehumane responses. There has been a renewed emphasison treatment, expanded access to the overdose antidotenaloxone, the passage of Good Samaritan laws that offerprotection to those calling for help during an overdose,and, recently, serious discussions of previously-taboo harmreduction interventions, such as supervised consumptionservices. Nonetheless, drug war strategies persist. Despitemedia attention elsewhere, use of the criminal justice systemcontinues to dominate local, state, and federal responses toincreasing rates of opioid use and overdose.An Overdose Death Is Not Murder: Why Drug-InducedHomicide Laws Are Counterproductive and Inhumane

The Office of National Drug Control Policy has promotedprescription drug monitoring programs and coordinatedfederal-state crackdowns on pain physicians, patients, andillicit sellers.25 The Drug Enforcement Administration (DEA)has aggressively investigated and prosecuted pain physiciansfor prescribing practices viewed as outside the scope oflegitimate medical practice.26 The Obama administrationprioritized “law enforcement efforts to decrease pill mills,drug trafficking and doctor shopping” beginning in 2011.27States have mirrored the federal response to combattingprescription opioid misuse. Unsurprisingly, these responseshave been wholly ineffective at reducing rates of prescriptionopioid use or overdose.Moreover, as people addicted to opioids transition to or enterthe illicit heroin market, they are met with the same “arrestand incarcerate” policies that have been widely recognized asineffective at reducing drug use, causing high rates of relapse,recidivism and re-incarceration.28 Indeed, the criminalizationof drug use is a major driver of incarceration in the UnitedStates. Each year, U.S. law enforcement makes nearly 1.5million drug arrests – more arrests than for all violent crimescombined. The overwhelming majority – more than 80% –are for possession only and involve no violent offense.29 In2015, nearly 40% of drug arrests (more than 570,000 people)were for marijuana possession, and 45% (more than 674,000people) were for possession of drugs other than marijuana.30Just 16% of all drug arrests were for sale or manufacture ofany drug.31 Clearly, the drug war lumbers on notwithstandingwidespread disillusionment with its persistent failures atreducing problematic drug use and protecting public healthand safety. President Trump and Attorney General JeffSessions can be expected to ratchet itup even further.32www.drugpolicy.orgAs overdose rates continue to rise, so do the proportion ofpolicy proposals focused on punishment and retributioninstead of public health and safety. Elected officials unfamiliarwith, or resistant to, harm reduction, prevention, andtreatment interventions are introducing punitive, counterproductive legislative measures in a misguided effort toreduce overdose fatalities. Though their rhetoric may becompassionate, their policies are anything but. They areadopting a law and order approach to solve a public healthcrisis, with devastating consequences.For instance, before 2004, 29 states had permitted peoplewith substance use disorder to be involuntarily committedto treatment, with most of those laws passing in the 1980s.33Since 2004, however, as the overdose crisis started itsupswing, an additional eight states34 have passed involuntarycommitment laws that permit the institutionalization ofpeople who use drugs without their consent, and states withold laws are reinvigorating their enforcement. Pennsylvania,New Jersey, Alabama, Maryland, New Hampshire, andWashington have either introduced involuntary commitmentlaws for the first time or are proposing changes to existinglaws in order to make commitment less difficult.35 In NewHampshire and Washington, the bills provide for involuntarycommitment specifically as applied to opioid use.36 Inaddition, since just November 2015, 25 states have passedlegislation to increase various fentanyl-related penalties.37Perhaps most draconian of all, prosecutors are increasinglycharging people who supply the drug that contributes toan overdose death with murder or manslaughter underdecades-old drug-induced homicide laws. Politicians arealso introducing legislation to establish new drug-inducedhomicide laws or to increase penalties for drug-inducedhomicide laws already on the books, with one federal proposalgoing so far as to call for the death penalty.387

Drug-Induced Homicide:A Legal OverviewFederal and State Laws“Drug-induced homicide” broadly refers to a criminaloffense wherein the illegal manufacture, sale, distribution, ordelivery of a controlled substance that causes death results ina specific charge, usually manslaughter or murder. The federallaw, passed in 1986 as part of the Controlled SubstancesAct, provides a penalty of 20 years to life for anyone whodispenses a controlled substance that results in death orserious bodily injury.39 Currently, 20 states40 – Colorado,Delaware, Florida, Illinois, Kansas, Louisiana, Michigan,Minnesota, New Hampshire, New Jersey, North Carolina,Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont,Washington, West Virginia, Wisconsin, and Wyoming –also have drug-induced homicide laws on the books thatcould be used to charge someone who delivers a drug thatresults in an accidental overdose death (see Appendix A).The Colorado, Rhode Island, and Wyoming laws, however,are limited to those who deliver a controlled substance toa person under the age of 18. State law penalties vary fromtwo years to capital punishment. In six states – Colorado,Florida, Louisiana, Oklahoma, Rhode Island, and WestVirginia – the minimum penalty is life in prison. A host ofother states, while without specific drug-induced homicidestatutes, still charge the offense under various felony-murder,depraved heart, or involuntary or voluntary manslaughterlaws (see Appendix A).Map 1. DIH Laws8An Overdose Death Is Not Murder: Why Drug-InducedHomicide Laws Are Counterproductive and Inhumane

Legislative HistoryLegal ChallengesEvidence of the legislative intent behind these statutes isscarce. From the legislative history that does exist, however,we know that some state legislatures emphasized theimportance of punishing major drug suppliers. The Vermontstatute penalizing the sale or dispensation of a drug resultingin death, for instance, explicitly states: “Many people whobecome addicted to illegal drugs resort to small-scale sale ofdrugs to support their addiction. This act is not directed atthose people, but rather at the entrepreneurial drug dealerswho traffic in large amounts of illegal drugs for profit.”41 TheNew Jersey statute was similarly intended to penalize so-calleddrug “kingpins”:Opponents of drug-induced homicide statutes have arguedthat such laws are unconstitutional, primarily because theyare vague with respect to whom the law is intended to cover,the required mental state of the defendant when committingthe prohibited act, and the tenuous connection betweenthe delivery of the controlled substance and the host ofother factors that often contribute to death. Courts haverejected these challenges, however, largely in efforts to avoiddetermining the constitutionality of the law. The case ofPeople v. Boand44 is illustrative.[The statute] must target for expedited prosecution and enhancedpunishment those repeat drug offenders and upper echelonmembers of organized narcotics trafficking networks who posethe greatest danger to society. In order to ensure the most efficientand effective dedication of limited investigative, prosecutorial,judicial and correctional resources, it is the policy of this State todistinguish between drug offenders based on the seriousness of theoffense, considering principally the nature, quality and purity ofthe controlled substance and the role of the actor in the overalldrug distribution network. It is the intention of the legislature toprovide for the strict punishment, deterrence and incapacitationof the most culpable and dangerous drug offenders, and tofacilitate the rehabilitation of drug dependent persons.42Other states more explicitly focused on the potential deterrentfactor of the law, whether applied to “upper echelon”manufacture and distribution or low-level exchanges. InMichigan, one argument in support of the legislation positedthat “perhaps friends, acquaintances, and drug dealersalike would think twice about selling or providing drugs toanother if faced with life imprisonment should that friend,acquaintance, or customer die.”43www.drugpolicy.orgThe defendant in Boand first argued the drug-inducedhomicide statute was unconstitutionally vague because thelegislature intended the statute “to stop drug traffickers, theprofessional drug dealers,” but the law held liable anyone whodelivered a controlled substance, even the lowest-level personin a drug supply chain.45 The court responded that the plainlanguage of the statute criminalized the “delivery” of drugsand defined “delivery” to include any transfer of a controlledsubstance whatsoever, so the law was not unconstitutionallyvague – the law gave citizens notice that any drug transfercould potentially incur liability.46The defendant next argued the statute was unconstitutionallyvague because it did not specify what mental state wasrequired to incur liability (most criminal laws specify a mentalstate a defendant must have when performing the prohibitedact in order to incur liability).47 The court responded thatthe drug-induced homicide statute imposed liability when adeath occurred as a result of someone violating the IllinoisControlled Substances Act, and that because that Actprohibited the knowing delivery of a drug, the drug-inducedhomicide statute incorporated the “knowing” mental stateas well.48 Drug-induced homicide statutes that impose strictliability – that expressly state a defendant will be held liablefor the conduct regardless of mental state (even if the conductwas done unintentionally or unwittingly) – have also widelybeen upheld.499

Drug-Induced Homicide:A Legal Overview, cont.Finally, the defendant argued the statute wasunconstitutionally vague because it did not specify howdirectly the drug delivery had to cause the death in orderfor the defendant to be held liable.50 In other words, thedefendant argued that the statute was too vague because aperson would not know whether he or she would be heldliable for delivery of drugs that were remotely related to adeath – say, if the defendant delivered drugs to someone whoused them, decided to partake in a dangerous activity whileintoxicated, and then died from the activity rather than thedrugs themselves.The court, in response, imputed the causality requirementfrom the similar felony-murder statute into the drug-inducedhomicide statute, and held that liability would only beimposed if the delivery of the drugs “proximately caused”the death.51 Felony murder is a legal doctrine that imposesmurder liability for a death that occurs in the commission ofa felony, even if the killing is unintentional. Under bothfelony murder and drug-induced homicide, “proximate cause”refers to an action or event that results directly and foreseeablyin a result, sufficiently enough that it can legally be consideredthe cause of that result. The argument that “proximate cause”is lacking in drug-induced homicide cases is the strongestof the vagueness claims, but the widespread acceptance ofthe felony-murder doctrine – which often requires a minimalshowing of proximate cause, if any – suggests courts wouldlikely not overturn drug-induced homicide statutes onthese grounds.5210Though legal challenges like Boand and others have beenunsuccessful, their failure is not due to meritless arguments.Rather, the doctrine of constitutional avoidance largely shieldsthese statutes from judicial intervention. Under the doctrineof constitutional avoidance, a court faced with an ambiguousstatute must read the law to be constitutional if any suchinterpretation is reasonably plausible, even if the most naturalinterpretation is unconstitutional.53 The Boand court, forinstance, invoked constitutional avoidance in considering thecausation challenge. Even though the most natural readingof the statute contai

acquaintances, and people who sell small amounts of drugs, often to support their own drug addiction. Despite police and prosecutor promises to go after upper echelon drug manufacturers and distributors, that rarely happens. Out of the 32 drug-induced homicide prosecutions identified by the New Jersey Law Journal in the early 2000s, 25 involved